How later courts described this case
- holding that “the determination whether the aggravating circumstances outweigh the mitigating circumstances is not a finding of fact or an element of the offense. Consequently, Ring and Appren-di do not require that a jury weigh the aggravating circumstances and the mitigating circumstances.”
- holding that “[although not required by Harris, ... Alabama’s statutory procedures d[o] guard against an arbitrary and capricious [imposition of a sentence of death] by a trial court....”
- “[T]he weighing process is not a factual determination or an element of an offense; instead, it is a moral or legal judgment that takes into account a theoretically limitless set of facts and that cannot be reduced to a scientific formula or the discovery of a discrete, observable datum.”
- where the evidence indicated that the victims had been repeatedly stabbed with a knife and that one victim had witnessed the attack on the other, the offense was especially heinous, atrocious, or cruel
Written by the judges who cited it.
The opinion
I join part I of the main opinion. I write specially to address further Waldrop's contention that the trial court's finding of fact that the capital offense was "especially heinous, atrocious or cruel compared to other capital offenses," § 13A-5-49 (8), Ala. Code 1975, violated his right to a trial by jury under the United States Constitution. A plurality of the Justices on the United States Supreme Court in Harris v. United States , 536 U.S. 545 , *Page 1197 122 S.Ct. 2406 (2002), released the same day as Ring v. Arizona , 536 U.S. 584 , 122 S.Ct. 2428 (2002), stated: "Basing a 2-year increase in the defendant's minimum sentence on a judicial finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments." 536 U.S. at 568 , 122 S.Ct. at 2420 .
A dissenting opinion, joined by three other Justices, observed:
"According to the plurality, the historical practices underlying the Court's decision in Apprendi[v. New Jersey , 530 U.S. 466 (2000),] with respect to penalties that exceed the statutory maximum do not support extension of Apprendi 's rule to facts that increase a defendant's mandatory minimum sentence. Such fine distinctions with regard to vital constitutional liberties cannot withstand close scrutiny."
536 U.S. at 574 , 122 S.Ct. at 2423 . At a later point the dissenting opinion states:
"Thus, it is ultimately beside the point whether as a matter of statutory interpretation brandishing is a sentencing factor, because as a constitutional matter brandishing must be deemed an element of an aggravated offense. See Apprendi , supra , at 483, n. 10, 120 S.Ct. 2348 (`[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition "elements" of a separate legal offense')."
536 U.S. at 576 , 122 S.Ct. at 2424 .
Until the dissenting opinion in Harris becomes the law of the land, I must reject Waldrop's argument that the trial court's finding that the offenses were "especially heinous, atrocious or cruel compared to other capital offenses" is a finding of fact that must be determined by a jury.
As to part II, I respectfully dissent. I would remand to the trial court for further proceedings in light of Ex parte Taylor , 808 So.2d 1215
(Ala. 2001), cert. denied , 534 U.S. 1086 , 122 S.Ct. 824 (2002); and Ex parte Carroll , 852 So.2d 821 (Ala. 2001). The fact that the judge who tried this case is no longer in active service should not justify disregard of the necessity for remand. I join Justice Johnstone's thorough review of this issue in his special writing.
WOODALL, J., concurs.